Demand of statehood in the Darjeeling hills and the MP Candidates for the General election 2014

Hillman the Analyst, KalimNews, Kalimpong, 24 March 2014: Sportsman turned politician Baichung Bhutia truly speaking like a politician to gain mileage towards MP elections, by hook or by crook, by publicly stating his opposition, an eminent parliamentarian SS Ahluwalia (BJP/GJM) is a liar - in that the latter’s claim to obtain statehood is bogus. 
The reverse question is, can Baichung (as a TMC candidate) even utter the words Darjeeling & Dooars State/UT, is a rhetoric which gleam the colour of his skin.

On the other hand noted academician Dr.Mahendra Lama another stalwart on the MP seat fray, pointing fingers at Baichung Bhutia that he is Sikkimese requires a rebuttal.

The fact that Pawan Chamling govt. passed a Resolution No.3 in 2011 demanding a state for Gorkhaland for the hill people of Darjeeling District is an acquiescence, that Darjeeling District (at least the subdivisions of Darjeeling, Kurseong, Siliguri by right (documented articles of 1835, 1850, 1861) are ceded territories, which in a manner of speaking indicate the original owner (patta). This account indicates Baichung Bhutia has as much right, even with his TMC brand printed over him, he is a Darj man in equal terms as Dr. Mahindra Lama.

Incidentally one is reminded to look up the Parliamentary Standing Committee Report 2007 in debunking the Sixth Schedule application to Darjeeling District. Particular refer to pages 244 – 253 which contents speaks voluminously of the support both by the Chairperson of the Standing Committee, Mrs. Sushma Swaraj (MP-BJP) and SS Ahluwalia (MP-BJP), in arguing in support of the Fifth Schedule as the true legal provision for the demand mounted by the Darjeeling hill people. Without mincing words they have pointed out to the Union Home Secretary, Mr. Madhukar Gupta, whether he has done his homework before raising the bogus of the Sixth Schedule, which is specific to the Northeast States.

 This writer while researching into the constitutionality of state formation in India, which was a bewildering experience, came across the Parliamentary Standing Committee Report 2007 on the Sixth context to Darjeeling District, is thankful to both Sushma Swaraj and SS Ahluwalia, whose delivery in the meeting (pointing the difference between he Fifth & Sixth Schedule) ascertained this writer’s dilemma. 

Though the Fifth Schedule was indicated for Darjeeling District, as per the establishment of the Tribes Advisory Council (TAC) in 1952-56 vide President’s direction that a Tribes Advisory Council be established in the State of West Bengal along with the Governors Notification No.1280 & 1282 T.W., dated Calcutta, the 25^th August 1953. But since West Bengal became a State in 1956 somehow the TAC seemed to have vanished into thin air, and which could not be accounted by this writer. It is the context of the above two parliamentarians which addressed the provisions of the Fifth & Sixth Schedules in the Standing Committee debate which gave moral confidence to this writer’s view that the former was applicable to Darjeeling District and definitely not the latter.

Now that an aspect of the Fifth Schedule has once again been applied after a lapse of 57 (2013-1956)years whence West Bengal became a State under Art.4, before which since 1947 it was a Province of West Bengal created by the Radcliff Boundary Commission. Constitutionally speaking it is quite unnerving to realise that West Bengal was created on the basis of the fact that Darjeeling District was a Partially Excluded Area. Similarly the legal basis of creating East Bengal simultaneously is based on the foundation tat the Chittagong Hill Tracts was an Excluded Area. The Act of 1935 is believed to have been the basis on which the Constitution of India is articulated.                

Is it not a fact that the element & soul of the 1935 Act & 1936 Order ‘Excluded & Partially Excluded Areas’ was transformed into the provisions of the “Sixth & Fifth Schedules”  respectively . Almost all the Excluded Areas were in Assam, whereas the Partially Excluded Areas were geographically distributed throughout India. 

Is it not a fact that the total Excluded & Partially Excluded Areas (E&PEA) were 36 in number, wherein eight were former and twenty eight latter. No doubt the interests/safeguard of the inhabitants of the areas were transmitted into the Constitution (Fifth & Sixth Schedules) is understood. The question now is where are the 36 such designated E&PE areas knowing full well they are within the framework of the Constitution.

Is it not a fact that almost all (35) E&PEA are now construed as new States (16 including Telangana 2014) and Union Territories (4) after the commencement of the Constitution in 1952. It maybe pointed out in the above complexity of areas with their identities (safeguard) guaranteed by the Constitution (Fifth & Sixth Schedules) have all been ensured their democratic legal rights (in becoming new States/UT) as per law. The last of the 36 remaining now is Darjeeling District (PEA = Fifth Schedule). It is therefore the constitutional writ that statehood /UT is guaranteed subject to confirmation of a particular criteria which remains to be fulfilled, i.e. Scheduled Area quantification of the Fifth Schedule.      

The final & million dollar question remains to be answered now in the days leading to the forthcoming Parliamentary elections, which is, will the paramount dream of separation from West Bengal - being a demand, directly becoming a State/UT (as provided by the Fifth Schedule route for Darjeeling District). This incidentally is the constitutional guarantee which is undeniably inevitable.

If the Fifth Schedule is the constitutional route for demanding a State/ UT for Darjeeling District a question arises whether the Dooars of Jalpaiguri District will be included in the format of the scheme. To this question the answer is (i) Darjeeling District = all four subdivisions, including Siliguri (ii) the new State/UT would also include the 11 Dooars of Jalpaiguri District and perspectively unknown will be the inclusion of the present Bodoland Territorial Council (BTC) area. This is not surprising. It is only the implementation of the Fifth Schedule & the constitutional implications.

Is the demand for statehood a constitutional right. The answer is yes & no. The answer is yes when the demand is implied by only those areas covered by the Act of 1935 determining those areas listed as E&PEA (which are covered by the Sixth & Fifth Schedules respectively. The answer is no to any demand for State/UT other than those areas in the Fifth & Sixth Schedules and only restricted to the list of 36 Partially Excluded Areas &Excluded Areas respectively.

Can any other areas outside the Fifth & Sixth Schedules demand a State/UT in India besides those guaranteed by the two Schedules. The answer is a definite NO. Infact though Articles 1-4 which determine new state formation for amalgamation into the Union of India only project the process and construction of the concept (i.e. the legality for state formation requires both national & international understanding). The said Arts only lead up to the unification of the newly constructed states within the sovereign democratic republic of India.

Is it true that the creation of new states is the prerogative of the President of India only and not the Parliament nor the State Assemblies. Yes only the President of India has the sole power to create the new State/UT. The reason is simple. The areas which are guaranteed their legal rights (1935 Act  transferred to the Fifth & Sixth Schedules) which are directly under the sole discretionary power of the President of India only. As a result of which the Houses of Parliament & the State Legislatures have no legal standing whatsoever in the matter concerning new state formation.

Recently the creation of new State of Telangana is an exceptional example to ascertain the fact that creation of new states has no bearing on the bifurcation of the parental state. Inspite the Andhra Pradesh Assembly vetoed the Bill creating Telangana the Parliament passed the Bill (infact supported by the major opposition party, BJP) is a glaring indication the Presidential Ordinance cannot be overruled.

There are a plethora of new state formation demands (at least two dozens) from various states of India will they ever get an opportunity to redress their claims. The answer is simple NO. And if any political party is gallivanting with such claims then wisely it must be understood that the overtures are simply politically motivated, without any legal sanction.

Many believe concertedly that language (the Eight Schedule) can be asserted in raising the statehood demand. This is also a general perception in the public domain. Is there any substance at all in this assumption? The answer is simple NO. There are no other legal criteria at all to raise any such demands based on language, religion, culture-creed, socioeconomic implications, etc, etc., The demand is entirely based on the specific articulations of the Constitution which is already mentioned therein, and so not without.

It is generally accepted, as well as historically documented, in one aspect or the other that prior to independence in 1947 new provinces were created on the basis of religious divide i.e. the division of the (i) Province of Bengal, and (ii) Northwest Frontier Province, The Punjab and Oudh (United Provinces).  To set history in legal perspective, the former were fragmented into two new Provincial components West Bengal & East Bengal primarily in consideration of the legal fact that the former was created considering the fact Darjeeling District was a Partially Excluded Area. In the same line East Bengal was created on basis of CHT being an Excluded Area. Post independence 1947 East Bengal became a separate country, East Pakistan. Without the said criterias the division was incomprehensible.

During the same time two units were created out of the Northwest Frontier Province, The Punjab and Oudh (United Provinces, i.e. the Provinces of West Punjab & East Punjab, based on the same legality applied to the division of Bengal. West Punjab was created on account of the Excluded Area of Upper Tanawal & Hazara District and East Punjab on account of the Excluded Area of Spiti & Lahaul (Kangra District).At the time of independence West Punjab became West Pakistan.       

There is a common belief amongst the public domain as well as the literate if not underestimating, that political parties can undertake the demand for a new state. This belief is entirely unaccounted as the constitutional history of India records that nopolitical party can assert the claim. The simple reason to lay at rest this assumption is that the Constitution being supreme is above law, whereas the establishment of a political party is based on a constitution of its own which requires to be registered under the laws programmed by the Constitution.

In other words, if any political party take up the cudgel of demanding a new state, would be discounted on account of a conflict of interest arising out of two separate constitutions, i.e. that of the Union of India versus the concerned political party/s. Obviously since the Constitution of India is supreme and that the constitutions of units/organisations created by it functions as its organs only to support the parent - the Constitution of India.

Those who are familiar with this writer’s discourses, available in the net (Darjeelingtimes.com  and Kalimpong News) which is entirely based on the constitutional reckoning, without any paraphernalia’s, therefore it is the earnest opinion of this writer that the statehood is already on the anvil and most probably it will be delivered by whichever political party/s who dons the mantel of the next Govt. of India, will surely be required to deliver the demand of the Darjeeling hill peoples, and without much ado. In other words, this writer, having gaged the tune of the constitutional play, will have to comply with the demand, as early as possible after the next govt. formation.

With the certainty of things to come i.e. a State/UT for Darjeeling & the Dooars, which consideration is not figured out even by the literate or the high and mighty, on any field, are somewhat disillusioned by the political units who have taken the onus burden of planking the demand, however without actually being educated in familiarizing the operation. Considering the lack of such knowledge seems to be the blinding factor leading to various mismanagements, the writer has posed the above discourse to forthwith enlighten the concerned masses searching the dark with a light to indicate the path to their final goal. It is hoped the above questions and answers will pave a better metal road for the carriage of their demand instead of a footpath which is at times has proven to be slippery and untredable.

Just before concluding a few pertinent questions remain to be asked, rhetorically with due apologies  This writer is well acquainted with the fact that Baichung Bhutia is not only a sportsman of high caliber but also a character of the highest order. But the point is politics is a different cup of tea as a result of which will disbanding the hill flavored tea to the bitter and pungent CTC of the plains does not auger well for the sustainment of his personal standing. Whether he is versed in the above legally contentious issues of state formation or not is a different question, but the fact of the matter remains that his blanket support for the plains based TMC is seen as a betrayal to the hill people of Darjeeling District & the Dooars which blunder would be very difficult to wipe out in the history of the statehood demand. It will not spare him the blame even if he is ignorant of the legality of the demand for the simple reason that no political party resourced in West Bengal however concerned for the hill peoples will remain opposed to the demand antithetically, even when the demand is constitutionally guaranteed as explained in the above legal citations

Therefore to comment on SS Ahluwalia who has already proven his support in the Parliamentary Standing Committee 2007 that the Fifth Schedule is a direct route to the aspirations (State/UT) of the hill people is available in the voluminous govt. document, titled, “Parliament of India Rajya Sabha Department related Parliamentary Standing Committee on Home Affairs 129^th Report on the Sixth Schedule to the Constitution (Amendment) Bill 2007, and the Constitution (107^th) Bill 2007 (presented to Rajya Sabha on 28 February 2008) (Laid on the table of Lok Sabha on 28 February 2008) Rajya Sabha Secretariat New Delhi”. 
This Report is recommended for reading by all literati as well as politicians of all hues and colour, and particularly analyze the contents of the pages wherein Mrs. Sushma Swaraj & SS Ahluwalia has infact charged then Union Home Secretary, citing the writ of the Constitution that what the people of Darjeeling want (State/UT) is provided in the Fifth Schedule and not Sixth Schedule which (1) doesn’t deliver what the people want - self determination (Fifth Schedule) within the Indian Union and is constitutionally applicable to the people of Darjeeling District & Dooars and (2) that Sixth Schedule is not applicable at all as it is distinctly meant for the Northeast conglomeration of States. Which is why the Sixth Schedule eventually died on its own weight in the Rajya Sabha after the UPA-1 was replaced by UPA- 2. The Bill though amended was not even tabled on the floor of the House for the simple reason it’s implications was ultra virens the writ of the Constitution.

Next concerns is Dr.Mahendra instant success by the route of vote bank politics is no doubt his prerogative which none can bar. But as a concerned friend wish him all luck and good wishes but at the same time it is the well borne duty as a friend, though already too late at this moment of time, to suggest anything positively in favour is out of question, except to wish him happy hunting.

However since this writer has been writing numerous pages in the net since 2007 (jokes aside the number of pages which could very well be compiled into two voluminous books if not three with at least three pages per volume) purely on the constitutional path, so that the newly established political unit GJM does not go amok as the last GNLF agitation which has indelibly scared the entire district irredeemably, whether unwittingly or otherwise is a different question. The fact is the mark of history is printed in the pages particularly where accounts of human loss of lives, not to mention the host of other factors which has impacted the cultural life to a staggering downturn. 
The impact of which can only be visualised when comparatively studied with the advancement of the state of Sikkim and the country of Bhutan, where development and progress has advanced to such an extent that Darjeeling District which once was their beacon of leadership, is now behind them in the same count. It was this feeling of apathy prevailing in the people of Darjeeling District which was the hand that moved the spirit in this writer to contribute whole heartedly to the success of the statehood agitation and which goal alone will solve the equation – for the people to achieve their goals outside the boundary of West Bengal, just as Sikkim & Bhutan –the ethnic parents have achieved theirs. Surely now their children the people of Darjeeling District are adult and mature enough to plan and guide their own future to the same level of advancement of the former neighbouring states.

Dr. Lama who hails from Darjeeling, may win or lose the elections, that is a different question. But at the same time it is generally an accepted view of the concerned few who are able to understand the gravity of the statehood demand, that it would have been discreet, as a gentleman to practice tactfulness in handling the statehood subject with due considerations, considering the political and constitutional nature of the subject already adventured by GJM since 2007 which account alone may have been considered for a more diplomatic appeasement with Bimal Gurung. 
If Dr.Lama had ventured forth with this concept and arranged a bilateral deal surely the matter would have been concluded to benefit the entire people of Darjeeling & Dooars. As it is a bit too late to cry over spilt milk, Bimal’s extension of the olive branch may have been triggered by a desperate alliance as blood brothers – though late than never for help should have been approached on a humanistic level, pure and fine, than approached with a stick to reprimand the naughty child, does not bode well for the former. Dr. Lama’s response according to this writer, frankly speaking was cold and vindictive than reconciliatory. This negative approach surely does not increase the stature of Dr.Lama rather it has a reverse positive response in defiling the claim of the latter’s moral and ethical deficit. Could it be that Dr.Lama’s debacle in Sikkim could have triggered the response in a manner in getting even with those in Sikkim who are responsible for destabalising the further extension of the Vice Chancellorship. 
Dr.Lama has all the grains to grouse against Sikkim and for which he has the moral grounds to rebound but in a ethical fashion, on its own grounds. However, just in case as it is mongered around that winning the Darjeeling MP seat is primarily targeted to show the Sikkimese rulers the beckoning of his might maybe realised as counter productive at the end of the day. After all there is no guarantee of any one claiming to win in the present race.teh results are totally unpredictable at this stage in time, though there are subtle signs favoring Dr.Lama particularly as a backlash to the mismanagement of the statehood agitation by the passionate activism then passive resistance – well set by Gandhian precepts. As a result of which the GJM has lost its numbers to a marked deficit account and which numbers is now cornering the GJM to practically to a squirmier.

But overall it must be stressed that GJM will still be ruling the roost on account of the life span of the GTA as well as the elected MLAs which combined is still a powerful force to reckon with and sustained for over a period of time. without intending suggest anything with any ulterior motive the best bet, after taking all factors into consideration, the statehood demand solely rests on GJM and now the national political party BJP which the former is supporting and rightly so considering the futuristic post election aspects, according to national news or otherwise, is indicative of the results favoring the BJP as a vanguard in forming the next govt. at the Centre, with the NDA partners if it is to sustain the development plan which seems to be the single agenda of the party, and which also seems to be the electorates consideration.

Last but the least is a final say to inform the readers that the result of the MP election is not at all critical to the statehood demand as in the account of this writer that the statehood/UT is already pipelined in the Rajya Sabha in the form of a Bill sent to the govt. as an Ordinance of the President to activate Parliament in considering the delimitation of Parliamentary and State Assembly seats for the Scheduled Tribes, and which has been lying before the upper house since three sessions of parliament which has been doused by West Bengal MPs supported by the opposition from being passed as an act. This is inspite of the fact that the Bill happens to be a Presidential order and which delay is indicative that some unseen hand is managing the stage from behind the scene – obviously all the MPs et al from West Bengal who are opposing the bifurcation of the State. This is obvious and there is no grudge to grouse this being the situation surely the GJM is at a disadvantage particularly accounting the fact that even on its one home ground the hill people for whom the GJM bell tolls is disillusioned by the party which is not able to herd its sheep in the pen.

However this writer is more than confident whatever maybe the results of the MP elections the final hours of glory in finally receiving the State/UT will remain with Bimal Gurung as the Chief Executive of the GTA, and not as the President of GJM. It is most probable the above important Bill which will finally trigger the process to statehood demand (by processing the second criteria of the Fifth Schedule -  Scheduled Area, accounted for by the above Bill pending before Rajya Sabha). This is the future scenario of the reality to come and none can disclaim this program as this writer has already predicted this end goal in his book mentioned earlier. Infact after having understood the legal provisions of state formations thoroughly and that Darjeeling District & Dooars including Bodoland are already constitutionally guaranteed as a roadmap, this writer, during a dialogue with an individual opposed to the statehood demand, had to come out of the argument by extending a monetary bet of Rs. 10,000/- in support of the statehood becoming reality. This was a satta but as a matter of prestige on an ethical count that the state/UT of Darjeeling & Dooars will probably be created within 2014, infact had the ST delimitation Bill been passed in the beginning of the year when it was first tabled, the Darjeeling peoples demand  would have been conjointly sailed through with that of Telangana.

All is well that ends well. That is sure for sure.

Hillman –The Analyst (Alias Karma T.Pempahishey) (authored the book Roadmap on the Trail to Gorkhaland (Partially Excluded Area-The Constitutional Guarantee)